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STATE WATER RESOURCES LAW DID NOT PREEMPT ZONING BOARD’S REQUIRING TOWN APPROVAL BEFORE WATER CAN BE EXTRACTED FOR COMMERCIAL PURPOSES.

The Fourth Department determined the state Water Resources Law, which governs the extraction of groundwater, did not preempt the town zoning board's special-permit condition requiring town approval before water can be extracted for commercial purposes. Petitioner sought to build a pipeline to carry water from under petitioner's land to another town where the water would be sold. Petitioner argued the Water Resources Law preempted the town from requiring approval for commercial use of the extracted water. The Fourth Department held that the town's power to regulate the use of land, here requiring permission before water can be extracted for commercial purposes, was not limited by the Water Resources Law:

… [T]he Water Resources Law (ECL article 15, et seq.) does not preempt local zoning laws concerning land use. Instead, the Water Resources Law preempts only those local laws that attempt “to regulate withdrawals of groundwater,” which “includes all surface and underground water within the state's territorial limits” … . The Water Resources Law does not preempt the authority of local governments to “regulate the use of land through the enactment of zoning laws” … . * * * … [T]he statute regulates how a natural resource may be extracted but does not regulate where in the Town such extraction may occur. Matter of Smoke v Planning Bd. of Town of Greig, 2016 NY Slip Op 03322, 4th Dept 4-29-16


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VILLAGE BOARD OF TRUSTEES DID NOT FAIL TO STRICTLY COMPLY WITH THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA).

The Second Department, reversing Supreme Court, determined the village comprehensive plan and zoning amendments should not have been annulled on the ground the board of trustees failed to strictly comply with the State Environmental Quality Review Act (SEQRA):

“SEQRA mandates literal compliance with its procedural requirements and substantial compliance is insufficient to discharge the responsibility of the agency under the act” … . As relevant here, 6 NYCRR 617.6(a)(4) permits an agency to waive the requirement for an environmental assessment form (hereinafter EAF) if a draft environmental impact statement is prepared or submitted. In this case, such a draft environmental impact statement was prepared. Thus, the failure to prepare an EAF did not amount to a failure to literally comply with SEQRA's procedural requirements. * * *

… [T]he Board of Trustees satisfied SEQRA's substantive requirements. In particular, the Board of Trustees adequately analyzed a reasonable range of alternatives … . Accordingly, the Supreme Court should have denied so much of the petition/complaint as sought to annul the Comprehensive Plan and the Zoning Amendments on the ground that the Board of Trustees failed to strictly comply with the substantive requirements of SEQRA … . Matter of Village of Kiryas Joel, N.Y. v Village of Woodbury, N.Y., 2016 NY Slip Op 03005, 2nd Dept 4-20-16


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EXTENSIONS OF NONCONFORMING USE SHOULD NOT HAVE BEEN ALLOWED.

The Second Department determined the extension of a nonconforming use by the construction of decks, a gazebo, awning and detached shed should not have been permitted by the board of zoning appeals (BZA):

… [T]he Surf Club's erection of the decks, the awning, the gazebo, and the detached shed on its premises, and the completion of certain alterations to its clubhouse, constituted an impermissible extension of that nonconforming use, not a mere increase in volume or intensity of the same nonconforming use … . As such, the BZA's determination to grant the Surf Club's application for an extension of nonconforming use violated Code of Town of Brookhaven § 85-883(A)(2), which prohibits the extension of nonconforming uses. Accordingly, the portion of the BZA's determination which granted the Surf Club's application for an extension of nonconforming use was arbitrary and capricious and should have been annulled by the Supreme Court. Matter of Martinos v Board of Zoning Appeals of Town of Brookhaven, 2016 NY Slip Op 02828, 2nd Dept 4-13-16


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PROPERTY DEVELOPMENT BASED UPON AN INVALID PERMIT DOES NOT GIVE RISE TO A VESTED RIGHT IN THE DEVELOPED PROPERTY.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined petitioner did not acquire a vested right to an advertising sign erected pursuant to an invalid permit which was later revoked by the city (NYC). The court further determined the proper procedure for seeking approval for the sign is an application for a variance. Whether petitioner relied in good faith on the invalid permit could be considered in the variance proceeding:

“[A]n owner of real property can acquire a common law vested right to develop property in accordance with prior zoning regulations when, in reliance on a 'legally issued permit,' the landowner 'effect[s] substantial changes and incur[s] substantial expenses to further the development' and '[t]he landowner's actions relying on [the] valid permit [are] so substantial that the municipal action results in serious loss rendering the improvements essentially valueless'” … .

Vested rights cannot be acquired, however, where there is reliance on an invalid permit … . When a permit is wrongfully issued in the first instance, the vested rights doctrine does not prevent the municipality from revoking the permit to correct its error. Because the 2008 permit was unlawfully issued, petitioner could not rely on it to acquire vested rights. Matter of Perlbinder Holdings, LLC v Srinivasan, 2016 NY Slip Op 02122, CtApp 3-24-16

ZONING (PROPERTY DEVELOPMENT BASED UPON AN INVALID PERMIT DOES NOT GIVE RISE TO A VESTED RIGHT IN THE DEVELOPED PROPERTY)

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NO RATIONAL BASIS FOR GRANTING USE VARIANCE TO CONSTRUCT CAR WASH; PARTY SEEKING VARIANCE IS ENTITLED TO REASONABLE RETURN BUT NOT THE MOST PROFITABLE RETURN.

The Second Department determined Supreme Court properly annulled a use variance granted to allow the construction of a car wash. The court explained the analytical criteria:

“To qualify for a use variance premised upon unnecessary hardship there must be a showing that (1) the property cannot yield a reasonable return if used only for permitted purposes as currently zoned, (2) the hardship resulted from unique characteristics of the property, (3) the proposed use would not alter the character of the neighborhood, and (4) the alleged hardship was not self-created” … .

With regard to the first element, “[i]t is well settled that a landowner who seeks a use variance must demonstrate factually, by dollars and cents proof, an inability to realize a reasonable return under existing permissible uses'” … . * * * The … parties did not … submit any actual financial information, such as the original purchase price of the property, the expenses and carrying costs of the property, the present value of the property, the taxes, the amount of any mortgages or other encumbrances, the amount of income presently realized, if any, or an estimate as to what a reasonable return on the entire property or any portion should be … .

Entitlement to a use variance is not established merely by proof that the proposed use would be more profitable than a smaller scaled project not requiring a use variance .. . The … parties are entitled to a reasonable return, not the most profitable return … . Thus, the Supreme Court properly found that the ZBA’s determination that the Splash parties established unnecessary hardship was arbitrary and capricious since it does not have a rational basis in the record … . Matter of DeFeo v Zoning Bd. of Appeals of Town of Bedford, 2016 NY Slip Op 02082, 2nd Dept 3-23-16

ZONING (USE VARIANCE, NO RATIONAL BASIS FOR GRANTING USE VARIANCE TO CONSTRUCT CAR WASH; PARTY SEEKING VARIANCE IS ENTITLED TO REASONABLE RETURN BUT NOT THE MOST PROFITABLE RETURN)/LAND USE (USE VARIANCE, NO RATIONAL BASIS FOR GRANTING USE VARIANCE TO CONSTRUCT CAR WASH; PARTY SEEKING VARIANCE IS ENTITLED TO REASONABLE RETURN BUT NOT THE MOST PROFITABLE RETURN)/USE VARIANCE (NO RATIONAL BASIS FOR GRANTING USE VARIANCE TO CONSTRUCT CAR WASH; PARTY SEEKING VARIANCE IS ENTITLED TO REASONABLE RETURN BUT NOT THE MOST PROFITABLE RETURN)

 

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DEVELOPER DID NOT HAVE A VESTED RIGHT IN A CONDITIONAL FINAL SITE APPROVAL IN LIGHT OF A CONFLICTING REZONING LAW IN EFFECT PRIOR TO THE APPROVAL.

The Court of Appeals determined petitioners did not have a vested right in a conditional final site approval because it was not reasonable for petitioners rely on the approval in light of the conflicting local law rezoning the property:

An owner of real property can acquire a common law vested right to develop the property in accordance with prior zoning regulations when, in reliance on a “legally issued permit,” the landowner “effect[s] substantial changes and incur[s] substantial expenses to further the development” and “[t]he landowner’s actions relying on [the] valid permit [are] so substantial that the municipal action results in serious loss rendering the improvements essentially valueless” (see generally 4 Rathkopf’s The Law of Zoning and Planning § 70:20 [4th ed]). Here, it was not reasonable for petitioners to rely on the December 2007 conditional Final Site Approval of the development, in carrying out any substantial actions furthering the development. In particular, in 2005, the year before the rezoning of petitioners’ property by means of Local Law No. 3 (2006) of Town of Newburgh, the Town Planning Board had repeatedly warned petitioners of the proposed rezoning. The December 2007 Approval itself did not engender expectations to the contrary. It included a statement of the new zoning status of the property. Additionally, while petitioners challenged the rezoning in court, petitioners must have been “cognizant of the potential for an eventual legal ruling that the Local Law was in fact valid” … . Matter of Exeter Bldg. Corp. v Town of Newburgh, 2016 NY Slip Op 00999, CtApp 2-11-16

ZONING (DEVELOPER DID NOT HAVE A VESTED RIGHT IN A CONDITIONAL FINAL SITE APPROVAL)

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EXCEPTION TO FINALITY RULE WHERE IT IS CLEAR FURTHER ADMINISTRATIVE PROCEEDINGS WOULD BE FUTILE; DEVELOPER DID NOT HAVE A PROPERTY INTEREST IN A SITE PLAN APPROVAL WHICH WOULD SUPPORT A VIOLATION-OF-DUE-PROCESS CAUSE OF ACTION.

In finding the town planning board’s motion for summary judgment on several causes of action brought by respondent developer should have been granted, the Second Department explained (1) the finality rule need not be mechanically applied where it is clear further administrative proceedings would be futile, and (2) the developer did not have a property interest in a site plan approval which would support a violation-of-due-process cause of action:

 

“To determine whether a matter is ripe for judicial review, it is necessary first to determine whether the issues tendered are appropriate for judicial resolution, and second to assess the hardship to the parties if judicial relief is denied'” … . “The concept of finality requires an examination of the completeness of the administrative action and a pragmatic evaluation of whether the decision-maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury'” … .

In the area of land use, “[a] final decision exists when a development plan has been submitted, considered and rejected by the governmental entity with the power to implement zoning regulations” … . In this regard, “[a] property owner, for example, will be excused from obtaining a final decision if pursuing an appeal to a zoning board of appeals or seeking a variance would be futile. That is, a property owner need not pursue such applications when a zoning agency lacks discretion to grant variances or has dug in its heels and made clear that all such applications will be denied” … . Additionally, an exception to the finality requirement exists where the municipal entity uses “repetitive and unfair procedures in order to avoid a final decision” … . …

[Respondent developer] alleged that it had a cognizable property interest in the approval of the application that was injured in violation of its right to due process under both the United States and New York State Constitutions. However, as the Planning Board has significant discretion in reviewing site plan applications … , East End does not have a cognizable property interest in the approval of a particular site plan application …. .  East End Resources, LLC v Town of Southold Planning Bd., 2016 NY Slip Op 00476, 2nd Dept 1-27-16

 

ADMINISTRATIVE LAW (FINALITY RULE NOT APPLIED WHERE FURTHER PROCEEDINGS FUTILE)/ZONING (DEVELOPER DID NOT HAVE PROPERTY INTEREST IN SITE PLAN APPROVAL)/DUE PROCESS (DEVELOPER DID NOT HAVE PROPERTY INTEREST IN SITE PLAN APPROVAL)/SITE PLAN (DEVELOPER DID NOT HAVE PROPERTY INTEREST IN SITE PLAN APPROVAL)

PLAINTIFFS HAD STANDING TO BRING A COMMON-LAW ACTION TO ENJOIN ZONING VIOLATIONS BY VIRTUE OF THE CLOSE PROXIMITY OF PLAINTIFFS’ AND DEFENDANTS’ PROPERTIES.

The Second Department determined plaintiffs had standing to bring a private common-law action to enjoin zoning violations by virtue of the proximity of plaintiffs’ property to defendants’ property:

 

“To establish standing to maintain a private common-law action to enjoin zoning violations, a private plaintiff must establish that, due to the defendant’s activities, he or she will sustain special damages that are different in kind and degree from the community generally’ and that the asserted interests fall within the zone of interest to be protected’ by the statute or ordinance at issue” … . However, “an allegation of close proximity may give rise to an inference of injury enabling a nearby property owner to maintain an action without proof of actual injury” … . Here, the record demonstrates that the plaintiffs’ property was in close proximity to the defendants’ property and that the plaintiffs’ interests “were within the zone of interest to be protected by the zoning ordinances alleged to be violated” … . Since the appellant failed to demonstrate that the plaintiffs lacked standing to maintain this action, the Supreme Court properly denied that branch of his motion which was to dismiss the complaint pursuant to CPLR 3211(a)(3)… . Gershon v Cunninghaml, 2016 NY Slip Op 00332, 2nd Dept 1-20-16

 

ZONING (STANDING FOR PRIVATE COMMON-LAW ACTION TO ENJOIN ZONING VIOLATIONS)/STANDING (PRIVATE COMMON-LAW ACTION TO ENJOIN ZONING VIOLATIONS)

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Zoning Board Applied an Incorrect Definition of a Term in a Zoning Ordinance—Court Has the Power to Impose Its Own Interpretation as a Matter of Law

The Third Department determined that the town’s zoning board of appeals did not apply the correct definition of a “neighborhood place of worship” when it denied petitioner’s application to convert a day spa to a “mikvah” in an area zoned for “neighborhood places of worship.” Submitted papers demonstrated that immersion in the waters of a mikvah is a basic religious ritual for Orthodox Jews and involves the recitation of blessings or prayers. Because the matter necessitated the interpretation of the terms of a zoning ordinance, the court need not defer to the zoning board’s interpretation:

The parties agree that the term “neighborhood place of worship” is neither defined in the Town’s zoning law, nor does it appear elsewhere in the Town’s ordinances. The zoning law does provide, however, that “[w]ords not specifically defined shall have their ordinary dictionary meanings” (Town of Mamakating Zoning Code § 199-6 [A]). Thus, the pertinent inquiry distills to whether petitioner’s proposed mikvah comports with the dictionary definition of a neighborhood place of worship. Although courts will ordinarily defer to a zoning board’s interpretation of a local ordinance, when “the issue presented is one of pure legal interpretation of the underlying zoning law or ordinance, deference is not required” … . The issue posed is susceptible to resolution as a matter of law by interpretation of the ordinance terms. Matter of Winterton Props., LLC v Town of Mamakating Zoning Bd. of Appeals, 2015 NY Slip Op 07734, 3rd Dept 10-221-5

 

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Zoning Board’s Determination Lacked a Rational Basis

The Second Department determined Supreme Court properly found the zoning board of appeals (ZBA’s) determination was not supported by the evidence and lacked a rational basis. The petitioners were denied permission to operate a concrete aggregate recycling business in an area where the processing of raw materials was prohibited. The zoning board denied the application on the ground that petitioners were going to process raw materials. However petitioners denied that they would process raw materials and there was no evidence, other than rumor, to the contrary. The court explained the criteria for review of a zoning determination:

“In a proceeding pursuant to CPLR article 78 to review a determination of a zoning board of appeals, judicial review is limited to ascertaining whether the action was illegal, arbitrary and capricious, or an abuse of discretion”… . Where, as here, a determination is made by a zoning board of appeals after a public hearing, the determination of the zoning board should be upheld if it has a rational basis supported by evidence in the record (see CPLR 7803[4] …).

* * * The key determination made by the ZBA … was that the petitioners intended to engage in activities that included the processing of raw materials on the site, despite the petitioners’ repeated statements and assurances otherwise. The record is replete with instances where the petitioners disputed, as nothing more than baseless rumor and suspicion, the claim that they intended to engage in activities other than concrete aggregate recycling on the site. The record is also devoid of any evidence supporting the ZBA’s conclusion that the petitioners would engage in activities other than those which were explicitly approved or permitted as of right under the zoning and planning ordinance in force prior … . Matter of Green Materials of Westchester v Town of Cortlandt, 2015 NY Slip Op 07659, 2nd Dept 10-21-15

 

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